Donald Walter McCargar Applicant - v. -, 2017 ABQB 692

Court of Queen’s Bench of Alberta Citation: McCargar v Métis Nation of Alberta Association, 2017 ABQB 692 Date: 20171115 Docket: 1603 21029 Registry: Edmonton Between: Donald Walter McCargar Applicant - and - Métis Nation of Alberta Association and the Registrar of the Societies Act of Alberta Respondents Corrected judgment: A corrigendum was issued on November 17, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.E.

Topolniski _______________________________________________________ I. Introduction [ 1 ] Mr. McCargar seeks leave to amend an Amended Originating Application filed in connection to a dispute arising from the amendment to and registration of two bylaws passed (by special resolution) at the 2016 Annual General Meeting of the Métis Nation of Alberta Association (MNAA).

He also seeks costs of this application on the ground that the MNAA and Registrar were aware of his intention to amend his pleadings since June 2017. [ 2 ] The MNAA and the Registrar of the Societies Act of Alberta (Registrar) oppose the application on the ground that the

proposed amendments are hopeless. The MNAA also opposes the proposed amendments on the ground that they are prejudicial. Both seek thrown away costs for the aborted three-day special chambers hearing that was derailed by the last minute filing of an earlier iteration of the proposed amendments to Mr. McCargar’s pleadings. [ 3 ] For the reasons that follow, I find that the proposed amendments fail and that the MNAA and Registrar are entitled to enhanced costs. II. Background [ 4 ] Associate Chief Justice Rooke has case managed this litigation since early January 2017.

He has made certain Orders and directions that bear on this application. [ 5 ] A brief chronology of the litigation to date is this: November 28, 2016 – Mr. McCargar files his Originating Application (Schedule I), seeking: o a declaration that the special resolutions are contrary to law; o an Order in the nature of mandamus requiring the Registrar to strike the special resolutions from the Societies Act , RSA 2000, c S-14 Registry; o an Order revoking the MNAA’s non-profit society status under the Societies Act ; and o an interim injunction. December 8, 2016 – Mr.

McCargar amends his Originating Application (Schedule II) to add this relief: o That upon a declaration that the Special Resolutions are contrary to law, and an Order in the nature of mandamus is issued for the Registrar to strike the resolutions, the time period from the registration of the Special Resolutions to their being struck from the Registry of the Societies Act, with an additional 30 days to deal with the appeal period, be followed by a declaration that the MNAA was operating illegally due to having no membership and hence no membership [sic], and that all funding agreements and or contracts and memorandums of understanding entered into during that time period are void; and o Any such further relief this Honourable Court deems just in the circumstances.

December 16, 2017 – the interim injunction application is adjourned. January 30, 2017 – ACJ Rooke orders a litigation plan, which is varied on August 8, 2017 to accommodate a subsequent appeal of an unsuccessful application by Mr. McCargar to compel answers to undertakings (detailed below). Para 12(b)-(

d) of the Litigation Plan concerns a consent arrangement whereby the MNAA agrees, among other things, to suspend operation of one of the contested special resolutions, such that, new MNAA members would not be required to swear an oath of membership until after the merits hearing to be heard in October 2017. On or around February 2, 2017 – A special chambers hearing is scheduled for October 18-21, 2017 to determine the merits of the issues set out in the Amended Originating Application (October Hearing).

July 5, 2017 – Counsel for the MNAA writes to ACJ Rooke seeking advice on what will be addressed at the October Hearing as Mr. McCargar’s written submissions raised new remedies and issues outside the scope of the Amended Originating Application. Excerpts from the written submissions attached to the letter indicate that Mr. McCargar was seeking this additional relief: 1. Judicial review of the legality of the two special resolutions; 2.

A direction to the Registrar to issue a certificate declaring that the incorporation of the Society should be revoked and cancelled, and a declaration that the name “Métis Nation of Alberta” is a prohibited name pursuant to the Business Corporations Act and Regulations ; 3. A reference to the Attorney General that Audrey Poitras (an officer of the MNAA that made an Affidavit in connection to the October Hearing) for a charge of perjury; 4.

A direction that the MNAA submit the genealogies of Audrey Poitras, Karen Collins, and Bev New to IMAC, including the applicants if deemed necessary, for the purposes of standing as legitimate [Métis] rights holders; 5. Leave to rely on the affidavits of Doreen Wabasca; and 6. A finding the MNAA is in civil contempt of the Order of ACJ Rooke “as will be explained in further detail in these written submissions”. • July 7, 2017 – Counsel for Mr.

McCargar writes to ACJ Rooke indicating that “the Amended Originating Notice prayer for relief for ‘any such further relief this honourable court deems just in the circumstances’ permits the arguments made in the written submissions”. Counsel also indicates that Mr. McCargar will not amend his argument, that the [new] relief sought necessarily ensues from the evidence, and that it is up to the presiding justice to determine whether the relief sought in the written submissions has merit. Mr.

McCargar’s counsel also advises ACJ Rooke that there are two additional applications that need to be dealt with before a hearing on

the merits - whether the genealogies of Audrey Poitras, Karen Collins, and Bev New will be forwarded to INAC, and whether the affidavit of Doreen Wabasca can be relied upon; both matters that she said the Court of Appeal would address. • July 7, 2017 – ACJ Rooke dismisses Mr. McCargar’s application to compel certain answers to undertakings (discussed below) on the basis that they were irrelevant given the issues raised in the Amended Originating Application. He also awards solicitor-client costs in favour of MNAA and the Registrar. • July 19, 2017 – ACJ Rooke responds to the letters from counsel for MNAA and Mr.

McCargar saying: Further to the letters of Mr. Frame of July 5, 2017 and Ms. St. Jean of July 7, 2017: 1. A provision in the Amended Originating Application that provides for “any further relief this Honourable Court deems just in the circumstances” is interpreted to mean that the Court is not limited to the strict relief sought. It does not mean that a party can add any substantive matter to the agenda without proper process. To bring in any new substantive matter would require an application, on notice, to the Court for leave to amend the Amended Originating Application in a specific way. 2.

In the result of the above, Mr. Frame does not need to address these matters in his brief, and the Court will ignore the arguments in that regard of Mr. McCargar. If Mr. McCargar is of the opposite view, he may bring an application on the same day as the scheduled hearing for an amendment to the Amended Originating Application (under #1), and we will determine whether it raises such issues for a future application/hearing. • July 21, 2017 – Counsel for the MNAA responds to ACJ Rooke’s letter advising that it is prepared to argue the merits at the October Hearing in accordance with his direction. Counsel for Mr.

McCargar responds to the letter advising that the Associate Chief Justice lacks jurisdiction to decide what Mr. McCargar will argue in his submissions as is up to the judge presiding at the hearing itself who must decide. • August 17, 2017 – Mr. McCargar obtains an amendment to the Litigation Plan. The ruling has at this date not been reduced to a form of Order (discussed below) and is the subject of a pending motion before ACJ Rooke to settle the minutes. The transcript of the proceeding indicates that an amendment was granted that would allow Mr.

McCargar to file additional submissions on the merits after the Court of Appeals’ ruling on the undertaking issue and the hearing on the merits would then proceed. This is what the transcript says: Okay. So the order will be that the litigation plan, the penultimate time frame will be changed to -- from on or before August 30 th to on or before the release of reasons for a decision by the Court of Appeal.

I’m sorry, 30 days after the release of reasons for a decision by the Court of Appeal and the hearing of the application, the last item, will be 30 days after the previous item, as may be set by the court and the parties. So we’re anticipating a hearing 30 days after the final argument. The other matter that would be changed is paragraph 12(a), will be changed in the second-last sentence, penultimate sentence, to the later, instead of earlier, and shortened, instead of extended. • Mr.

McCargar initially urged that this meant he had 90 days after the Court of Appeal’s decision for the merits motion to proceed, but conceded that it more logically means 30 days for written submissions and 30 days thereafter for the hearing itself. • Mid-September, 2017 – Mr. McCargar’s counsel delivers a draft form of Order arising from the August 17 hearing. The MNAA disputes the terms as drafted and suggests ordering a transcript. For a variety of reasons, none of which are attributable to the MNAA or Registrar, delivery of the transcript is delayed. • September 18, 2017 – Mr.

McCargar’s counsel files a Solicitor’s Notice of Withdrawal. • October 2, 2017 – the Alberta Court of Appeal dismisses Mr. McCargar’s appeal of the July 7, 2017 Order of Associate Chief Justice Rooke refusing to compel answers to undertakings. The written reasons that follow indicate that Mr. McCargar had sought a historical membership list from the MNAA and genealogical materials for its elected leadership to use as evidence on the application to set aside the two special resolutions.

The Court found that the undertakings were irrelevant to the issues raised on the application, and that even if the undertakings “were ordered to be answered, and those answers showed that one or more members of the MNA who voted for the Special Resolutions were not properly members because they were Indians within the meaning of the Indian Act , or that required notice had not been given to members in advance of voting on the Special Resolutions, or that the Resolutions had been submitted for registration out-of-time, that evidence would not assist Mr.

McCargar in advancing his underlying application because he has not challenged the validity of the Resolutions for any of those reasons”: McCargar v Metis Nation of Alberta Association , 2017 ABCA 322 at para 10 . The Court also found that Mr. McCargar’s challenge did not trigger constitutional concerns, that he had not demonstrated that his was a novel claim rather than a typical application to set aside a society’s resolution, and refused to disturb a finding that the application was “so devoid of merit that special costs were appropriate”: para 15 .

Also on this day, counsel for the MNAA writes ACJ Rooke advising of the outcome of the appeal and seeking directions on whether the October Hearing will proceed, indicating that it was ready to proceed. • October 3, 2017 – Mr. McCargar’s counsel writes to ACJ Rooke advising that she is again representing Mr. McCargar “and in particular, will be arguing this matter on his behalf”. • October 13, 2017 – ACJ Rooke emails the parties advising that the October Hearing will proceed. • October 18, 2017 – at the commencement of the October Hearing, counsel for Mr.

McCargar presents a form of Amended Amended Originating Application (Schedule III) that was served upon counsel for the MNAA and the Registrar moments before court convened. These proposed amendments reference allegations previously ruled to be irrelevant. Ultimately, the October Hearing is

adjourned sine die and this application is scheduled for November 10, 2017. • October 24 to November 3, 2017 – Counsel for the parties are in communication with ACJ Rooke about settling the terms of his August 17, 2017 Order, which Mr. McCargar had earlier presented to him for signature without the other parties’ approval pursuant to Rule 9.1(c). • October 25, 2017 - Mr. McCargar provides written submissions for this application that appends another version of the Amended Amended Originating Application (Schedule IV).

These proposed amendments vary and expand upon earlier references to some of the allegations previously ruled irrelevant, and add a new claim. • November 9, 2017 – Mr. McCargar’s counsel writes the Court advising that the proposed amendments per

Schedule IV are again changed: ▪ Any reference to the Indian Act in the facts alleged in the proposed amended pleadings will be removed. ▪ Proposed paragraph 5(

d) of the Amended Amended Originating Application as indicated by the italicized portions is: The transfer of authority to the MNAA to negotiate a treaty on behalf of Metis in Alberta was done with inadequate notice to the members, was proposed by one or more members who are not Powley-compliant, and was passed by the members one or more of whom are not Powley-compliant . The letter also states: We indicated that we did not need the complete Record.

Should this matter be allowed to proceed by judicial review, as we had believed at the onset that this was in fact a judicial review, we will need the Record from the MNAA that the membership is Powley​compliant. [ 6 ] In the course of the hearing of this motion, Mr. McCargar advised that his position was that this and other proposed amendments encompass a claim that requires the MNAA to establish the genealogy of its 33,000 members. III. The Law [ 7 ] The classic rule for the amendment of pleadings is that any pleading can be amended no matter how careless or late is subject to limited exceptions.

This is reaffirmed in the leading Alberta case on this subject: Balm v 3512061 Canada Ltd , 2003 ABCA 98 , 327 AR 149: 1. where amendment leads to serious non-compensable prejudice; 2. hopelessness, such that the plea would have been struck if originally pled; 3. due to expiration of a limitation period; and 4. if there was bad faith in failing to plead the matter in the first instance. [ 8 ] Alberta Rules of Court , Alta Reg 124/2010, (the Rules , or individually a Rule ) Rule 3.65 governs amendment of pleadings (except where adding or substituting parties) after the pleadings have closed: 3.65(1) ... before or after close of pleadings, the Court may give permission to amend a pleading.

(2) If the Court gives permission for a pleading to be amended, the Court must specify the time period within which the amended pleading must be filed and served.

(3) An order giving permission to amend a pleading under this rule ceases to have effect unless the amended pleading is filed and served within the time specified by the Court.

(4) If the Court directs or allows a pleading to be amended at trial, (

a) the amendment must be recorded in writing by the court clerk, and (

b) no order need be filed. ... [ 9 ] The threshold for permitting amendments is low unless there are allegations of fraud, highhandedness, or malicious conduct: Kwok v Canada (Natural Sciences and Engineering Research Council) , 2013 ABQB 395 at paras 29-31 , aff’d 2013 ABCA 431 , 566 AR 197; Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman SA , 2013 ABCA 87 at paras 6-7 , 11, 544 AR 24. In this case, there are no such allegations. [ 10 ] The question on amending a pleading is whether the facts, if proven, would constitute the claim.

Whether the party can actually prove the claim is irrelevant: Stolk v 382779 Alberta Inc , 2005 ABQB 440 , 383 AR 203; Hunter Financial Group Ltd v Maritime Life Assurance Co , 2007 ABQB 263 at para 13 , 428 AR 150, aff’d 2009 ABCA 199 , 457 AR 271 . IV. Analysis

[11] The most recent version of the proposed Amended Originating Application (Schedule IV) changes the complexion of theAmended Originating Application. It reframes the matter as one of judicial review, adds constitutional challenges, and more. [12] The proposed amendments also delete a remedy sought concerning the Registrar found in para 5 of the Amended OriginatingApplication, for an Order in the nature of mandamus that the Registrar strike the resolutions from the Registry. The Registrar consents tothis amendment. A.

Are the Amendments Hopeless? [13] Given the reframing of the application to one of judicial review, the availability of and procedural requirements concerningjudicial review is key. [14] It is trite that judicial review is a legal procedure whereby a Court reviews a decision of an administrative tribunal or anadministrative decision maker. [15] Access to judicial review is governed by Rule 3.15(1): 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicantseeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject tojudicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warrant or habeas corpus; (

b) a declaration or injunction. (emphasis added) [16] Except for judicial review in the nature of habeas corpus, an application for judicial review must be filed and served withinsix months after the date of the impugned decision. Further, all affidavits and other evidence to be relied upon must be filed and servedone month or more before the scheduled hearing: Rules 3.15(2), 3.15(5). [17] With that backdrop, I turn to assess whether the proposed amendments are hopeless. [18] All references to proposed amendments are to the most recent version of the Amended Amended Originating Application atSchedule IV. 1.

Hopelessness [19] A pleading is hopeless only if it is clear and obvious that there is no triable issue, which is something giving rise to a claimrecognized in law. Therefore, the question on amending a pleading is whether the facts, if proven, would constitute the claim. Whetherthe party can actually prove the claim is irrelevant: Stolk v 382779 Alberta Inc, Hunter Financial Group Ltd v Maritime LifeAssurance Co. 2.

The Proposed Amendments Concerning the Registrar [20] Paragraph 14 seeks an order in the nature of mandamus requiring the Registrar to issue a certificate pursuant to Societies Act,s 33(2) declaring that the incorporation of the MNAA is revoked and cancelled. [21] The Registrar is an an administrative decision maker whose decisions are subject to judicial review.

Alone, that does notdetermine whether the proposed amendment is hopeless. [22] In Apotex Inc v Canada (Attorney General), (FCA), [1994] 1 FC 742 (FCA) paras 48, 55; aff’d en toto (SCC), [1994] 3 SCR 1100 176 NR 1, the Federal Court of Appeal describes the preconditions for an order in the natureof mandamus, instructing that the mere filing of an application does not qualify.

These are the preconditions: 1. there must be a clear, legal right to have the thing sought to be done in the manner and by the person sought to be coerced; 2. the duty must be due at the time of seeking the relief; 3. the duty must be purely ministerial in nature; and 4. there must be a demand and refusal to perform. [23] The power given to the Registrar to issue a certificate declaring that she is satisfied that a society’s incorporation should berevoked and cancelled is discretionary.

In part, Societies Act, s 33 reads: 33(2) On sufficient cause being shown to the Registrar, the Registrar may issue to the Lieutenant Governor in Council a certificate underthe Registrar’s seal of office declaring that the Registrar is satisfied that the incorporation of a society should be revoked and cancelled. (emphasis added) [24] In this case, even if the Act mandated the Registrar to issue the requested certificate, there is no evidence of a demand (and

logically therefore, no refusal of the demand) that she do so. Accordingly, the proposed amendment is hopeless and leave to permit it is denied. 3. The Proposed Amendments Concerning the MNAA [ 25 ] The Alberta Court of Appeal has previously determined that the MNAA is not a public body, and therefore, its decisions are not subject to judicial review: Boucher v Métis Nation of Alberta Association , 2009 ABCA 5 at paras 3-12 ; 448 AR 185.

I am bound by that authority. [ 26 ] In Boucher v Métis Nation of Alberta Association , after reviewing the tests in Knox v Conservative Party of Canada , 2007 ABCA 295 at paras 14-15 , 20, 23, 286 DLR (4th) 129, leave to appeal to SCC denied, 32361 (8 February 2008), Côté JA said there was no need to opine on Knox v Conservative Party of Canada , saying at para 5 that: ... neither the Association nor the Judiciary Council satisfies the four tests postulated, and the appellant's arguments on this topic fail on all grounds.

I cannot imagine any likely test for a public tribunal which the Association or its Judiciary Council meets. [ 27 ] He then explains (paras 7-10): [7] The Association is a voluntary society incorporated under the Societies Act. Its powers come largely from consent and implied contract. No one is forced to join the respondent Métis Nation Association of Alberta. Alberta legislation does not require membership in it to join a Métis Settlement or get a land allocation. The Association is not a Métis Settlement, and does not run any of the Métis Settlements.

People with aboriginal rights have important rights which other people do not have, but they have them irrespective of membership in this association. The majority of Albertans are not eligible to join this Association even if they seek to do so. In my view, this voluntariness aspect is very important. [8] There are other important bodies in Canada with voluntary membership. At certain times and places, these have or had large memberships (especially in certain geographical areas), and great political influence.

Governments very often give much assistance or large grants of money to such bodies, or to their members via such bodies. One thinks of privately-established universities, churches, charities, women’s groups, cultural organizations, ethnic organizations, fraternal or service clubs, recreation or sports associations or leagues, veterans’ associations, and indeed political parties or their constituency associations. Somewhat similar are labor unions, and various umbrella groups for industries or professions. At times, public-interest or lobbying groups, permanent or ad hoc, achieve such importance and membership.

At one time, new railways were heavily aided. Therefore, like the chambers judge, I find the receipt of public money a very weak test for whether a body is a “public” tribunal for judicial review purposes. Of course I say nothing about words or concepts like “public” in other contexts, such as human rights laws, the Charter, or various statutes regulating government. [9] There is also a difference between (

a) voluntarily joining an association and so becoming subject to removal from it, and (

b) being involuntarily subject to regulation just by being present in Alberta, or resident in Alberta, or engaged in a regulated profession or industry. One can resign from the respondent Association and still be Métis, and still have or get many of the benefits of being Métis. But one cannot resign from the College of Physicians and Surgeons and still practise medicine, nor turn in one’s driver’s license and still drive, nor opt out of government regulation of one’s industry or trade. [10] It is true that much of the terminology of the respondent Association’s bylaws is redolent of sovereign government.

But just saying that does not make it so. That Association is set up and sustained by agreement among its members, and given corporate personality by the Societies Act. But that Act does not purport to grant governmental, still less sovereign, powers.

No other applicable legislation doing so has been suggested to us. [ 28 ] I do not accept that this caution in Fort Chipewyan Metis Nation of Alberta Local #125 v Alberta , 2016 ABQB 713 at para 208 , 13 Admin LR (6 th ) 51 changes the binding nature of Boucher v Métis Nation of Alberta Association by somehow cloaking the MNAA with a public body’s authority and decision-making power: ...

Until such time as the courts pronounce upon the application of s. 35 of the Constitution Act, 1982 in any given case, it is inappropriate for an organization to announce to the world at large that its members are clothed with such significant and weighty constitutional rights. To do so constitutes an attempt to usurp the role of the courts on a fundamental issue affecting all Canadians, including those with legitimate Aboriginal claims. [ 29 ] Similarly, I reject the argument earlier advocated by Mr.

McCargar (in his June 30, 2017 written submission for the October Hearing) that the MNAA has assumed the status of a public body because it receives government funding to develop and maintain “objectively verifiable [Métis] membership systems”. The observations in Boucher v Métis Nation of Alberta Association at paras 8 and 10 resonate. [ 30 ] Because the proposed amendments reframe the proceeding as one for judicial review and the MNAA is not a body whose decisions are subject to judicial review, the proposed amendments are hopeless and must fail.

Even if it were otherwise, there is no indication of what decision is sought to be reviewed or who the decision-maker was. B. Serious Non-Compensable Prejudice and Timeliness [ 31 ] Given my conclusions, subject to addressing paragraph 12(b)-(

d) of the Litigation Plan, I need not consider the parties’ other arguments concerning non-compensable prejudice, the lack of timeliness, and other procedural non-compliance.

[ 32 ] Paragraph 12(b)-(

d) of the Litigation Plan reads: b. any requirement by MNAA of any person applying for membership as of September 14, 2016, who had not, as of the date of this Order, signed the oath of membership, to sign the oath of membership, shall not be enforced by MNAA pending the earlier of October 20, 2017 (unless extended by the parties by consent or order of the Court) or the final determination of the matter, due to the legality of the oath of membership being under review by a court of law, to be determined on October 18-20, 2017, but may be enforced thereafter by the MNAA if the bylaw is upheld; c. the MNAA shall inform all applicants for membership as to the contents of b. above; and d. the MNAA shall not terminate the membership of any of its members except as it may be required to do from time to time pursuant to art. 8.1 of the Bylaws of MNAA, as amended on September 14, 2016. [ 33 ] The MNAA agreed to these provisions when the October Hearing on the merits was well in sight, but that is no longer the case.

Given the delay prejudice, the MNAA cannot maintain its agreement to their continuation. [ 34 ] An unfortunate reality for Alberta litigants seeking multi-day hearings in this Court is that they must wait a long time to secure a date. I am informed that the next available date for a 3-day hearing of this case is December 19, 2018. Anything longer cannot be heard until 2019. In this circumstance, it is facially prejudicial to continue the provisions of paragraphs 12(b)-(d), and because there is no reasonable manner to address the prejudice the provisions are deleted from the Litigation Plan. V.

Costs [ 35 ] All of the parties claim entitlement to costs. [ 36 ] The MNAA urges that Mr. McCargar’s conduct warrants an award of thrown away, solicitor-client costs for this appearance and the October Hearing. Mindful that thrown away costs on a solicitor-client basis may be appropriate in some circumstances, the Registrar seeks the

Schedule C, Column 1 costs for a full day application with written submissions. [ 37 ] Mr. McCargar says that motion met ACJ Rooke’s directions in his letter of July 5, 2017, and blames the MNAA and ACJ Rooke for the October Hearing being scheduled to proceed. His argument with the MNAA is that it knew from the time Mr. McCargar filed his written submissions in June that his pleading would be amended. Further, it sought ACJ Rooke’s direction on the October Hearing when it knew the Litigation Plan had been amended to address timelines after the Court of Appeal’s ruling. [ 38 ] I find that Mr.

McCargar’s eleventh-hour actions are the cause for the adjournment of the October Hearing, and the consequential waste of scarce judicial resources, time, and money. Here, I note that the voluminous materials filed for the October Hearing fill a banker’s box. [ 39 ] The award of costs is a discretionary matter. The Court is to consider the circumstances of each case in assessing a costs award, and the general considerations are found in Rules 10.31 and 10.33: The bases for ordering elevated costs are reviewed by Moen J in Brown v Silvera , 2010 ABQB 224 at paras 29-35 , 488 AR 22.

All involve serious litigation misconduct. Full indemnification by way of solicitor-client costs is infrequently ordered in Canada and requires “... unusual and egregious conduct by the losing party.

On rare occasions the court may award solicitor-client costs where equity is met by doing so. ( British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 at para 60 , [2003] 3 SCR 371). [ 40 ] In Ko p pe v Garneau Lofts Inc , 2005 ABQB 727 at para 6 385 AR 265, Slatter J (as he then was) observed that: The concept of “thrown away costs” arises because in Alberta our system of civil procedure is largely “prejudice-based”. ... [ 41 ] In Kowdrysh v Delong , 2002 ABQB 207 , 310 AR 48, new issues raised by the plaintiff required an adjournment of the trial.

At para 17, Martin J (as he then was) noted that: ... common sense and basic principles of fairness apply.

The defendant should not be required to shoulder expenses incurred by an obvious oversight or mistake of opposing counsel. ... [ 42 ] Wittmann ACJ (as he then was) in D'Amico v Weimkin , 2008 ABQB 129 at para 19 , 451 AR 338 ruled that there must be exceptional circumstances to justify costs for an adjournment of the trial being awarded other than on the basis of the applicable tariff, noting that this is frequently found where fault for the adjournment can be attributed entirely to deficiencies or failures of one side. [ 43 ] The topic of thrown away costs is thoroughly canvassed by Veit J in VAS v Grace , 2014 ABQB 150 at paras 40-50 , 8 Alta LR (6th) 383.

In that case, a trial was adjourned because the plaintiff’s expert refused to provide an expert’s report. [ 44 ] Justice Veit held that normal costs principles should apply to the determination of an award of thrown-away costs, and that it is only in those circumstances where bad behaviour is connected with the proceedings, or a contract imposes them, that an indemnity of costs, or even a solicitor/client award of costs, will be justified: para 41.

Ultimately, she determined that because the plaintiff was not only responsible for the adjournment, but also somewhat at fault with respect to requiring the adjournment, something higher than simple

Schedule C costs, but something less than solicitor/client costs was warranted: para 45. She granted $4,000 costs, being the full

Schedule C amount for trial preparation (Column 2 in that case), noting that a good portion of the defendant’s trial preparation was wasted.

[ 45 ] This newly filed application significantly changed the complexion of the issues before the Court, it caught the parties by surprise, and the adjournment was inevitable. [ 46 ] The direction in ACJ Rooke’s letter of July 5, 2017 says that any new substantive matter would require an application, and that if Mr. McCargar wanted to advance new claims, he “may bring an application on the same day as the scheduled hearing” to amend the Amended Originating Application and “we will determine whether it raises such issues for a future application/hearing ”. [ 47 ] I reject Mr.

McCargar’s contention that the Court or the MNAA is responsible for his last-minute actions or the expectation that the October Hearing would proceed as originally scheduled. Litigants, and particularly those represented by counsel, are expected to know that a motion filed and served moments before a hearing begins is very likely to result in an adjournment. Mr. McCargar claims that in June 2017, everyone else was aware that he would be amending his pleadings. Surely, if they knew, so too did he. It was simply unreasonable for him to sit idly until the day the October Hearing commenced to take action. [ 48 ] Mr.

McCargar’s contention that the MNAA and Court are at fault for directing the October Hearing in the face of the August amendment to the Litigation Plan fails to sway me. While, (for reasons that escape me, despite Mr. McCargar’s explanation and castigation of the MNAA for purportedly trying to take advantage of his counsel’s mistake in the original draft), the terms of the ACJ’s Order have not yet been settled, they can be ascertained from the transcript. There was to be 30 days to file additional submissions after the undertaking appeal was heard, and the merits hearing would be held 30 days later.

Logically, it also means that if the appeal failed, as it did, there would be no need for additional submissions and the first 30 days would fall off, leaving 30 days after the appeal for the hearing to proceed. That would have been November 1, 2017, which is some two weeks later than the pre-booked hearing commencement date. [ 49 ] ACJ Rooke found the MNAA’s request to abridge that timeline to make use of the pre-booked hearing sensible.

I have trouble envisioning how one could disagree – the time was booked, all written submissions were complete, the parties had five days to prepare their oral arguments, and Mr. McCargar did not then voice objection. [ 50 ] While I am satisfied that these series of events could well be construed as an example of “litigation by ambush”, I cannot conclusively say whether it results from design or misguidance. As such, I cannot find that the conduct is clearly egregious and therefore warranting solicitor-client costs.

For the same reason, I do not think it appropriate to yet consider the indicia of litigation misconduct discussed in Chutskoff v Bonora , 2014 ABQB 389 at 92, 590 AR 288, aff’d 2014 ABCA 444 . [ 51 ] I am, however, satisfied that enhanced costs equal to 1.5 times the tariff amount for a special chambers hearing with written submissions under Column 1 is appropriate.

That translates to $2,250.00 payable to both the MNAA and the Registrar. [ 52 ] In Canada v Olumide , 2017 FCA 42 , Justice Stratas made the important observation that the courts and Court resources are a “community property that exists to serve everyone”. In this case, it is time to take additional steps to manage the action and ensure that these resources are more thoughtfully engaged. Mr. McCargar is already required to obtain leave prior to making any filing in this action. This proportional restriction will continue. In addition, I order that Mr.

McCargar is prohibited from making any leave applications until he has paid all outstanding costs awards against him in this Action and the associated McCargar v Metis Nation of Alberta Association , 2017 ABCA 322 appeal, including the cost awarded in this decision: VI. Conclusion [ 53 ] Leave for the proposed amendment seeking the deletion of para 5 of the Amended Originating Application is consented to and granted. [ 54 ] Leave for all other proposed amendments is denied. [ 55 ] Mr. McCargar shall pay costs of $2,250.00 to the Registrar and the MNAA, each, for the abortive October Hearing. [ 56 ] Mr.

McCargar is prohibited from seeking leave to file any additional documents in this Action until he has paid all outstanding costs in this Action and the McCargar v Metis Nation of Alberta Association , 2017 ABCA 322 appeal. [ 57 ] The parties may speak to me about the costs of this application within 15 days if they cannot agree. Heard on the October 17 th and 18 th and November 10 th , 2017. Dated at the City of Edmonton, Alberta this 15 th day of November, 2017. J.E. Topolniski J.C.Q.B.A.

Appearances: Darlene St. Jean Triune Law for Mr. McCargar Jason T. Madden & Nuri G. Frame Pape Salter Teillet LLP for the Métis Nation of Alberta Association Josh de Groot Alberta Justice for the Registrar of the Societies Act of Alberta _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.E. Topolniski _______________________________________________________ The name of the Applicant has been corrected. The date of the August hearing and Order has been corrected to August 17, 2017. Paragraph [57] has been added.

Schedule I

Schedule II

Schedule III

Schedule IV